by Eric Dunleavy, Ph.D., Senior Consultant

On March 17, 2008, the Equal Employment Opportunity Commission (EEOC) held a public meeting to vote on the current status of the recordkeeping provisions of the Uniform Guidelines on Employee Selection Procedures (UGESP). These record keeping provisions detail the data requirements for applicant flow analyses, which are the most common data for analyses of adverse impact. This definition of applicant is important because it essentially determines who should be included and excluded from adverse impact analyses. The current definition of applicant in the UGESP is anyone that shows interest in a position. The meeting included a question and answer session between EEOC Commissioners Naomi Earp, Leslie Silverman, Stuart Ishimaru, and Christine Griffin and Carol Miaskoff, EEOC Office of Legal Counsel.

The Commissioners acknowledged that the EEOC and other enforcement agencies have been working on a revised definition of a job applicant since 1999. In fact, the EEOC was one of the federal agencies that published a notice in the Federal Register on March 4, 2004 regarding the adoption of additional questions and answers intended to clarify how UGESP applies in the context of the Internet and related technologies. However, these agencies have not agreed to a common definition. The OFCCP’s definition of an Internet applicant, which focused on the enforcement of Executive Order 11246, became effective in 2006. Because of the Paperwork Reduction Act, the EEOC was faced with extending the record keeping requirements of the UGESP or allowing them to lapse, which would mean that there would no longer be formal record keeping guidance for EEOC enforcement activity.

During the meeting the commissioners expressed disappointment that the EEOC and the other agencies could not come to a consensus on defining an Internet applicant. Additionally, the commissioners did not agree with the OFCCP’s definition. Specifically, the commissioners believe the basic qualifications prong of the OFCCP definition is too restrictive, and that those persons who fail the basic qualifications requirement may still be applicants, and may also be victims of discrimination. Importantly, the commissioners pointed out that the OFCCP definition is not endorsed by the EEOC, and that employers are mistaken if they assume the OFCCP definition applies to all enforcement agencies simply because it is the only Internet applicant definition available.

As expected, the commissioners voted unanimously to extend the record keeping requirements, and thus maintain the definition of applicant contained in the UGESP. Chair Earp asked whether the EEOC could enforce an Internet testing case using the definition from the UGESP, and Miaskoff said she thought the definition was flexible enough to be enforced in the online context.

The meeting ended with confirmation that this issue will be further considered over the next three years. In fact, Leslie Silverman hoped that the group of enforcement agencies that enforce the UGESP can come to consensus on a definition. However, the commissioners did mention the possibility that the EEOC could in theory decide to publish a separate EEOC definition of Internet applicant that would be potentially different from the OFCCP definition, although she acknowledged that this would not be the EEOC’s preference.

The thought of having substantially different definitions of Internet applicant, and thus, different rules for who is included and excluded from adverse impact analyses, is not a pleasant notion for employers. In the worst case scenario, adverse impact analyses using one agency definition may produce certain results, while using the applicant definition of another agency could in fact produce contrasting results.

DCI will keep you aware of any updates related to this issue.

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